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Dead, But With Official Explanation

There are a few things that no one disputes. Martin Olin, a 65-year-old lawyer and music industry guy who was riding his bike in the bike lane, was dead. Los Angeles County Deputy Sheriff Andrew Wood ran Olin down because he was on his computer while driving. And Martin Olin is still dead.

Wood was returning from a fire call at Calabasas High School and was on patrol when the accident occurred.

‘He was responding to a deputy who was inquiring whether the fire investigation had been completed,’ the letter from the prosecutor’s office stated. ‘Since Wood was acting within the course and scope of his duties when he began to type his response, under Vehicle Code section 23123.5, he acted lawfully.

This came in explanation of why Deputy Wood would not be prosecuted for killing Martin Olin. It seems when one is playing with a cop computer rather than an iPad, the guy they kill is official collateral damage. This makes all the difference.

‘Wood briefly took his eyes away from the road precisely when the narrow roadway curved slightly to the left without prior warning, causing him to inadvertently travel straight into the bike lane, immediately striking Olin.’

Change around a few adjectives and it’s the stuff of indictment, but that’s only when it’s unofficial. Adjectives are cheap. And indeed, police are exempt from the laws prohibiting the use of mobile devices while driving. After all, they sometimes need to run a plate, or get a message about a hostage crisis. Or something similarly official, even if less urgent. And they’re cops.

CHP spokesman Craig Martin, who was not specifically speaking about this case, in a recent email interview.

“As an officer, we are trained to multi-task and are exempt from certain laws in certain situations such as using a cellphone,” he said.

To be clear, it would appear that Martin Olin was killed as a result of Woods’ ordinary negligence. He was distracted and ran Olin down. It was an accident. This shouldn’t be a crime, regardless of who was driving or why they were distracted. To err is human, and contrary to the assumption of those who believe the bludgeon of criminal law should be used to assure that no harm ever comes to anyone, stercus accidit.

In the absence of a more serious and morally culpable mens rea, recklessness at the bare minimum, the mistakes that any person can make should not result in criminal prosecution. And that would appear to cover Deputy Woods’ distracted driving, so that the decision not to prosecute him for Olin’s death is the proper one.

But that’s not sufficient to address the problem here. Had it been someone who wasn’t a cop, but committed conduct no more morally culpable than Woods, he would have been prosecuted. Therein lies the problem, that Woods walks because he killed while distracted by “official” cop-ish stuff, but anyone else would be facing a jury. That’s where this all goes wrong.

If the point is that a guy like Martin Olin shouldn’t be run down in the street for riding his bike at the wrong moment, then what difference does it make that Woods was playing computer-guy about some trivial matter with a fellow cop? To the extent there is a distinction between urgent need for a cop to use his computer and, as here, banal cop chatter, is it worth a guy’s life?

And even if it was something more urgent, like running the plates on a car that crossed a solid line, is it worth a guy’s life? If the point of having cops is to protect us from crime, then killing guys on bikes in the process isn’t really serving the purpose.

Martin Olin’s family will be suing the Los Angeles County Sheriff’s office, and that’s as it should be. Negligence begets a civil suit for damages. Unfortunately, human beings can be negligent, do things that cause harm to others without any malicious intent or conscious disregard of the risks. They didn’t mean to cause any harm. And yet, they do. And sometimes, that harm is the death of a guy on a bike. It’s not good, but it’s not criminal.

Had anyone other than a cop been driving the car that ran Martin Olin down and took his life, he would have been engaged in criminal conduct, since the law prohibits the use of devices like a computer while driving. The justification is that it’s too distracting, and there seems to be some pretty good reason to believe that’s the case. And so it would have been a crime to kill while violating the law, and that person would end up prosecuted for the negligent vehicular homicide of Martin Olin.

Yet every factor that militates in favor of prosecuting a non-cop exists in equal force for prosecuting a cop. Except that he’s a cop. Despite the silly claim that cops are trained to multitask, as if they aren’t subject to the same distraction that the rest of humanity is forced to endure. The fact that Martin Olin is dead puts that nonsense to rest.

So either make it a crime for everyone, or make it a crime for no one. My vote is that no one should be subject to prosecution for a mere accident, just because we’re human and humans make mistakes. Sure, Martin Olin would be dead regardless, but that’s not why we create crimes. We do so to punish the morally culpable, and the outcome of conduct is not a reflection of the cause.

Had Martin Olin pedaled one step faster that day, he might not have been in the spot where Deputy Woods killed him. Yet, that makes Woods’ conduct neither more nor less criminal. It’s just kismet that Olin was exactly where he was when Woods hit him. The same would be true if Woods wasn’t a cop, or if it was someone else instead of Woods.

But either way, if it’s a crime or not, the fact that there was a cop behind the wheel is no cause for distinguishing between a crime and an accident. If the only thing that matters is a guy was killed, then he’s just as dead at the hands of the cop as anyone else. And Martin Olin is still dead.

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22 comments on “Dead, But With Official Explanation”

While I agree with you in the end, you’re missing the mark on something that matters. This isn’t “mere negligence.” Lots of safety research shows that distracted driving is akin to DUI. Regardless of the agency’s “Trust us, we’re trained pros” bullshit, that is reckless driving. Condoned or ordered by agency only makes it the agency’s turd, too.

That said, whether this should be treated as a crime is nothing I’m competent to address. Regardless, you’re spot on that it has to be all or none. Givng a break to the trained pros doing important things should induce vomiting in anyone with a brain.

Whether using a device is reckless or negligent seems to more a matter of politics than anything else. While I am against using phones, etc., while driving (much to the consternation of Texans who tell me I’m WRONG!!!), I reject the notion that it constitutes criminal recklessness, the conscious disregard of a known risk, which is the point here.

The mileage of plaintiffs personal injury lawyers tends to differ, but then, they aren’t talking about criminal recklessness and really don’t seem to give much thought to the distinction.

At least out here, the definition of recklessness is much the same for civil claims. (Paraphrasing: knowing or conscious disregard of a substantial risk of serious harm.) So in the strict sense of definition of elements, I don’t think there is a major difference. But yeah, your mileage varies.

Then our terminology is the same, but you consider the use of a device while driving not merely negligent, but inherently reckless. I do not. I suspect we both think it’s not even close, even though we go in opposite directions.

Yeah, I think this is exactly the issue. And I suppose it may be inevitable that we would take polar opposite positions.

I’m also struck by the idea that our filters get different results applying same standards to same facts. Maybe the theoretical relief comes in burden of proof? As the old adage holds, where you stand depends on where you sit, so I imagine my take might be 180 degrees different if I worked as a CDL.

That’s no doubt true. Of course, since this is a post about the district attorney’s decision not to pursue a criminal prosecution, having nothing to do with civil liability or damages, I hope that your introduction of the concerns of the civil personal injury lawyer doesn’t obscure the criminal law point of this post and leave non-lawyers needlessly confused and thus worse for having read the comments. After all, I’m always concerned that no one be made stupider for having come here. But I’m sure you already know that.

Do you see the problem you created by conflating your personal interests as a civi PI lawyer with the question of criminal culpability? No, you apparently don’t. If all people who use devices while driving are per se reckless, then they’re reckless for criminal purposes as well as civil. It’s unavoidable.

Are you really happy to see people go to prison just so you can put more money in your pocket? You PI lawyers are such greedy, selfish scum.

I don’t think David is motivated by greed at all. Rather, I think he’s a bit too liberal, and believes in the view that using devices while driving is a dangerous thing and government should condemn it through the use of criminal law. The problem arises here, as with so many liberal views, that he also wants to be fair to criminal defendants, even though his views are in direct conflict. So, rather than deal with the cognitive dissonance, he seeks a way around it. It’s the liberal conundrum.

Andrew-
Personal interests? Lining my pockets? Scum? Really? Let me polite: You know nothing about me or my work. I could go on in fine detail but I don’t think much is served by it.

Scott rightfully cautions me that injecting civil law into his post has great potential to confuse the under-informed. I assumed he was talking about lay readers. I was wrong about the risk, as your interpretation proves that the risk of confusion is far greater than I assumed. So Scott-Please accept my apology for walking down this path.

Here is the thing that interests me, Andrew: As one trying to hold transnational corporations accountable for misconduct in the civil setting, I see and use similar concepts–negligence and recklessness–and get to polar interpretations on the civil side. Does this mean that texting while driving should be a criminal offense? I don’t have a clue and certainly did not say that.

Is it reckless for purposes of civil litigation when undertaken by a cop who knows about traffic safety? Quite possibly. But that’s in the sense of a common law tort. You shrilly conclude that that must mean I want to put more people in jail. As if. That would be as intellectually dishonest as me saying that you want to make sure that BP, KBR, Comcast and all the other major bad actors I’ve taken on should never have to answer for reckless misconduct. (“Why do you favor corporate predation, Andrew? Is it because you’re lining your pockets? And when did you stop beating your wife?” Asinine, isn’t it?)

Wowza. Well then, now that you’ve ripped Andrew’s lungs out, plus his lower intestine and spleen, I think you firmly established that your views are sincerely held and you are not motivated by greed. On the other hand, you scare me when you’re angry. But in a good way.

Just as cops are no better than average (just more certain) in spotting “liars” or making identifications, I doubt that there is any research supporting their superiority at multiple-tasking. In fact, research debunks teenagers’ claims that they successfully multi-task. Now just try to convince either group that they suck at everything they’re trying to do.

I have been fortunate in a few of my more recent trials that juries are viewing the “cops have special abilities” mantra for the BS it is. In my particular case it was the “cops are better at ID’ing people, because training”, but other CDLs around here have had similar success with the “cops have a sixth sense” and “cops can tell when people are lying” piffle. The hope is that the more of these accounts that get out, the more that the public will actually reflect on the danger of imbuing police with superhuman capabilities.

I write about it as the ancient legal doctrine of stercus accidit, but it’s really just something I picked up from a commenter here years ago and it’s been with me ever since. I use it with some frequency around here. You have to admit, it serves its purpose well.

Scott H. Greenfield

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